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Thompson Mungo Firm Dec. 5, 2022

Depending on its complexity, each estate within the State of Georgia may have as few as one heir or as far as an extended family tree can go. The appointment of a Guardian ad Litem may be necessary to guarantee that the interests of interested parties of an estate who cannot advocate for themselves due to incapacity, age, or other factors, are protected.

Guardian Ad Litem (GAL)  is the person appointed by the court to defend and protect the rights and interests of the heir of a deceased person's estate in circumstances where these individuals cannot legally represent or speak for themselves in probate proceedings because their mental or physical being may be limited. (GA Code § 53-11-2, GA Code § 29-9-2)

The appointment of a Guardian Ad Litem will be made:

  1. When there are heirs to an estate who are not yet born

  2. When there are heirs to an estate who are under 18 years of age

  3. When there are adult heirs who cannot represent themselves due to incapacity

  4. When the heirs to an estate are unknown and unidentified

  5. When the deceased heirs have no personal representatives (if necessary)

  6. Whenever the court thinks that a Guardian Ad Litem would be beneficial, especially when there is a determined conflict of interest.

The Guardian Ad Litem appointed by the court may be an experienced probate attorney or a trained individual who is familiar with representing these individuals.

The Roles of a Guardian Ad Litem (GAL)

The Guardian Ad Litem serves as the "second pair of eyes and ears" for the court during the proceedings. They examine and verify if a Will is valid by interviewing related or interested parties to the estate or even the lawyer who drafted the Will. The Guardian Ad Litem, upon their appointment, also reviews the petition and investigates statements made by the petitioner or nominated executor. 

After a thorough review and investigation, the Guardian Ad Litem will submit their report and recommendation to the probate court. Their recommendation helps protect the incapacitated person's interest in the probate matter. The court, in some cases, will adopt the recommendation the appointed Guardian Ad Litem provided. The Guardian Ad Litem also helps advise the judge in making the most reasonable decision, which allows the probate process to run as smoothly and efficiently as possible. Because of this, the position of Guardian Ad Litem is significant in an estate where one is needed.

 When does the court not have to appoint a Guardian Ad Litem?

In most cases, the court will not have to appoint a Guardian Ad Litem, if the court determines that the following person, if any, who is already acting as guardian of an heir, has no conflict of interest with the party, they may represent the party in their probate proceedings.

  • Natural Guardian: Parents or the relatives of the ward

  • Testamentary Guardian: the person appointed in the Will to look after minor children in the event of the parent's or natural guardian's death.

  • Guardian or the conservator of the property: The person appointed by the court to administer the estate of a minor or adult ward.

  • Guardian of the person or heir: The person appointed by the court to manage all the personal affairs of the incapacitated individual like medical, transportation and more.

  • An agent via a Power of Attorney of an incapacitated adult.

Samples of conflict of interest between the guardian and the party:

  1. When the guardian is also the personal representative of the decedent

  2. When the guardian proposes to consider a purported Will of the decedent

  3. When a guardian is an heir or a beneficiary under the Will of the decedent

  4. When the probate court finds, for any reason, that the interests of the guardian in a particular proceeding are not the same as the interests of the party represented

There's no way around it; in probate proceedings, there may always be the need for a Guardian Ad Litem. Not only does it protect the interest of incapacitated heirs, but it also protects the interest of the incapacitated person. The court appoints a Guardian Ad Litem to ensure fairness and protection for incapacitated individuals. The Guardian Ad Litem serves as an objective party that ensures that there is representation for an incapacitated individual or an unrepresented estate.